Crl. Appeal No.847-SB of 1997 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.847-SB of 1997
Date of Decision : October 20, 2008
Rajbir Singh S/o Hukam Singh, ...Appellant
R/o Village Manpura,
District Sahranpur (UP)
Versus
The State of Haryana ....Respondent
CORAM:HON'BLE MR. JUSTICE SHAM SUNDER
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. R.S.Takoria, Advocate,
for the appellant.
Mr. A.K.Jindal, AAG, Haryana,
for the respondent.
SHAM SUNDER, J.
This appeal is directed against the judgment of conviction dated
9.10.1997, and the order of sentence dated 10.10.1997, rendered by the
Court of Addl. Sessions Judge, Karnal, vide which it convicted the
accused/appellant, for the offence, punishable under Section 15 of the
Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called
as ‘the Act’ only) and sentenced him, to undergo rigorous imprisonment
for a period of 10 years, and to pay a fine of Rs.1 lac, and in default of
payment of the same, to undergo rigorous imprisonment for another
period of two years, for having been found in possession of 13 Kgs. 500
Crl. Appeal No.847-SB of 1997 2
grams, poppy-husk, (now falling within the ambit of non-commercial
quantity), without any permit or licence.
2. The facts, in brief, are that on 18.2.1994, Hari Ram, SI, (since
deceased), alongwith other police officials, was present at bus stand,
Karnal, when Jai Singh, ASI, met him. The accused was present in booth
No.14 of the bus stand, having a raxin bag, in his hand. On seeing the
police party, he hurriedly proceeded towards the office of General
Manager, but he was apprehended, on suspicion. The enquiry was made
by Hari Ram, SI, as to what he was carrying in the bag. The accused
informed him, that he was carrying poppy-husk, in he bag. Search of the
bag, was conducted, in accordance with the provisions of law, in the
presence of Rajbir Singh Deswal, Addl. SP, who was called to the spot,
by sending a message, as a result whereof, 13 kgs. 500 grams poppy-
husk, was recovered. A sample of 500 grams was taken out therefrom,
and the remaining poppy-husk, was kept in the same bag. The sample,
and the bag, containing the remaining poppy-husk, were converted into
parcels, duly sealed, and taken into possession, vide a separate recovery
memo. Ruqa was sent to the Police Station, on the basis whereof, formal
FIR was registered. Rough site plan of the place of recovery, was
prepared. The accused was arrested. After the completion of
investigation, the accused was challaned.
3. On appearance, in the Court, the copies of documents, relied
upon by the prosecution, were supplied to the accused. Charge under
Section 15 of the Act, was framed against him, to which he pleaded not
guilty, and claimed judicial trial.
4. The prosecution, in support of its case, examined Om Parkash,
Crl. Appeal No.847-SB of 1997 3
ASI (PW-1), Ram Karan, HC (PW-2), Om Parkash, Inspector (PW-3),
Rajbir Singh Deswal, SP (PW-4), at the relevant time Addl. S.P., and Jai
Dev Singh, ASI (PW-5). Thereafter, the Public Prosecutor for the State,
closed the prosecution evidence.
5. The statement of the accused, under Section 313 Cr.P.C., was
recorded, and he was put all the incriminating circumstances, appearing
against him, in the prosecution evidence. He pleaded false implication.
He, however, did not lead any evidence, in his defence.
6. After hearing the Public Prosecutor for the State, the Counsel
for the accused, and, on going through the evidence, on record, the trial
Court, convicted and sentenced the accused/appellant, as stated
hereinbefore.
7. Feeling aggrieved, against the judgment of conviction, and the
order of sentence, rendered by the trial Court, the instant appeal, was filed
by the appellant.
8. The appeal was decided by this Court, on merits on 8.7.1998,
on the sole ground that the provisions of Section 50 of the Act, though
mandatory, in nature, were not complied with, and, as such, the trial,
conviction, and sentence, stood vitiated.
9. Feeling aggrieved, the appellant preferred Crl. Appeal No.1187
of 1999, in the Apex Court, which was decided on 14.9.2005, accepting
the appeal, and setting aside the judgment dated 8.7.1998, rendered by
this Court. The case was remanded back, to this Court, by the Apex
Court, to decide the same afresh, in accordance with the provisions of
law, after the appreciation of evidence, on record.
10. I have heard the learned Counsel for the parties, and have gone
Crl. Appeal No.847-SB of 1997 4
through the evidence and record, of the case, carefully.
11. The Counsel for the appellant, at the very outset, submitted that
no independent witness was joined by the Investigating Officer, despite
availability, as the alleged recovery was effected, at the public place. He
further submitted that even no effort was made, to join, an independent
witness, by the Investigating Officer. He further submitted that, under
these circumstances, the case of the prosecution became doubtful. The
submission of the Counsel for the appellant, in this regard, appears to be
correct. No doubt, Hari Ram, SI, the Investigating Officer, died during
the trial of the case, and could not be examined. However, Jai Dev, ASI
(PW-5), who was accompanying him, at the time of alleged search, and
seizure, during the course of his cross-examination, stated that there were
stalls at the bus stand, and at the near-by place. He further stated that the
passengers were present, in a large number, at the bus stand. He further
stated that the Sub Inspector, tried to join an independent witness, but
none was ready. He further stated that no action was taken against the
persons, from the public, who refused to join the search and seizure. He
further stated that, he did not know, as to whether any entry was made in
the DDR, or not, in this respect. The explanation furnished by Jai Dev,
ASI (PW-5), that an attempt was made by the Investigating Officer, to
join an independent witness, appears to be totally false. Admittedly a
number of public witnesses, were present, at the spot. Had any effort
been made, to join an independent witness, and had he refused to join the
search, and seizure, the Investigating Officer would have certainly taken
action against him. Not only this, he would have also certainly recorded
this factum, either in the case diary, or in the documents, which were
Crl. Appeal No.847-SB of 1997 5
prepared at the spot. This factum was not recorded by the Investigating
Officer, either in the case diary, or in any of the documents prepared at
the spot. This clearly belies the explanation furnished by Jai Devi, ASI.
This clearly goes to show that, in fact, no effort was made to join an
independent witness, despite availability, but the explanation aforesaid,
was furnished by Jai Dev, ASI, just with a view to cover up the lapse, of
the Investigating Officer. Had no independent witness been available, the
matter would have been different. In this case, independent witnesses,
despite availability, were not intentionally and deliberately joined by the
Investigating Officer, nor an attempt was made to join them. Since, the
minimum stringent punishment is provided for the offences, punishable
under the Act, and according to the provisions of Section 51 of the Act,
the provisions of the Code of Criminal Procedure, relating to search,
seizure and arrest shall apply to the extent the same are not inconsistent
with the provisions of the Act, it was imperative, on the part of the
Investigating Officer, to join an independent witness, at the time of the
alleged search, and seizure or at least to make a genuine, sincere and real
effort, to join such a witness. The search and seizure, before an
independent witness, would have imparted much more authenticity, and
creditworthiness, to the proceedings, so conducted. It would have also
verily strengthen the prosecution case. The said safeguard was also
intended to avoid criticism of arbitrary and high-handed action, against
the authorized Officer. In other words, the Legislature, in its wisdom,
considered it necessary to provide such a statutory safeguard, to lend
credibility to the procedure, relating to search and seizure, keeping in
view the severe punishment, prescribed under the Act. That being so, it
Crl. Appeal No.847-SB of 1997 6
was imperative for the authorized Officer, to follow the reasonable, fair
and just procedure, as envisaged by the Statute, and failure to do so, must
be viewed with suspicion. The legitimacy of judicial procedure, may
come under cloud, if the Court is seen to condone acts of violation of
statutory safeguards, committed by the authorized officer, during search
and seizure operation and may also undermine respect of law. That
cannot be permitted. In the instant case, the alleged recovery being minor,
now falling within the ambit of non-commercial quantity, and chances of
plantation of the same, against the accused, could not be ruled out, it
became the bounden duty of the Investigating Officer, to observe all the
safeguards, provided under the Act, at the time of search and seizure. It
is, no doubt, true that, in the absence of corroboration through an
independent source, the evidence of the official witnesses, cannot be
disbelieved and distrusted, blind-foldely, if the same is found to be
creditworthy. However, when the evidence of the official witnesses, is
found to be not cogent convincing, reliable and trustworthy, then on
account of non-corroboration thereof, through an independent source,
certainly a doubt is cast, on the prosecution story. In the instant case, the
evidence of the prosecution witnesses, does not inspire confidence, in the
mind of the Court. In this view of the matter, non-corroboration of the
evidence of the official witnesses, through an independent source,
certainly makes the case of the prosecution suspect. In State of Punjab
Vs. Bhupinder Singh 2001 (01) RCR (Crl.) 356, a Division Bench of
this Court, held the case of the prosecution, to be doubtful, on account of
non-joining of an independent witness, though the recovery was effected
Crl. Appeal No.847-SB of 1997 7
from a busy locality. In State of Punjab Vs. Ram Chand 2001 (1) RCR
(Crl.) 817, a Division Bench of this Court, held that it was imperative to
join an independent witness, to vouchsafe the fair investigation. On
account of non-joining of an independent witness, it was held that the
accused was entitled to be given the benefit of doubt. The principle of
law, laid down, in the aforesaid authorities, is fully applicable, to the facts
of the instant case. On account of non-joining of an independent witness,
at the time of the alleged search and seizure, the case of the prosecution,
became highly doubtful. The trial Court failed to take into consideration,
this aspect of the matter, as a result whereof, miscarriage of justice
occasioned.
12. It was next submitted by the Counsel for the appellant, that
there was a delay of 5 days, in sending the sample parcel, to the office of
the Forensic Science Laboratory, without any explanation, and, as such,
the possibility of tampering with the same, could not be ruled out. The
submission of the Counsel for the appellant, in this regard, appears to be
correct. It is, no doubt, true that mere delay in sending the sample to the
office of the Forensic Science Laboratory, in itself, is not sufficient to
come to the conclusion that the sample parcel, was tampered with, at any
stage, until it reached the laboratory. The prosecution could certainly
produce other evidence, on record, to prove that the link evidence was
complete, and none tampered with the sample parcel, until it reached the
office of the Forensic Science Laboratory. In the instant case, the
evidence produced by the prosecution, to prove the completion of link
evidence is not only deficient, but also unreliable. As stated above, Hari
Ram, SI, the Investigating Officer, died during the pendency of the trial,
Crl. Appeal No.847-SB of 1997 8
and could not be examined. Jai Dev, ASI, (PW-5), did not state even a
single word, as to in which state the property was produced before Om
Parkash, Inspector (PW-3). He did not state that the seals on the
property, were intact, when the same was produced before Om Parkash,
Inspector. Om Parkash, Inspector (PW-3), also did not state, as to
whether the seals, on the case property, and the sample parcel, were
intact, when the same were produced before him. There is no evidence,
on the record, to prove that with whom the case property was deposited,
either by the SHO, or by the Investigating Officer, and, if so, in which
condition, the same was deposited. In this view of the matter, it could be
safely held that the sample parcel, did not remain untampered with, until
it reached the office of the Forensic Science Laboratory, especially when
the seals after use, remained with the police officials, with whom the case
property, and the sample parcel remained. In Gian Singh Vs. State of
Punjab 2006(2) RCR (Criminal) 611, there was a delay of 14 days, in
sending the sample to the office of the Chemical Examiner. Under these
circumstances, it was held that the possibility of tampering with the
sample, could not be ruled out, and the link evidence was incomplete.
Ultimately, the appellant was acquitted, in that case. In State of
Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58, (Supreme
Court), the contraband remained in the Malkhana for 15 days. The
malkhana register was not produced, to prove that it was so kept in the
malkhana, till the sample was handed over to the Constable. In these
circumstances, in the aforesaid case, the appellant was acquitted. In
Ramji Singh Vs. State of Haryana 2007 (3) RCR (Criminal) 452, the
sample was sent to the office of the Chemical Examiner after 72 hours,
Crl. Appeal No.847-SB of 1997 9
the seal remained with the police official, and had not been handed over
to any independent witness. Under these circumstances, it was held that
this circumstance would prove fatal to the case of the prosecution. In
these circumstances, the principle of law, laid down, in the aforesaid
authorities, is fully applicable to the facts of the present case. The delay
of 5 days, in sending the sample to the office of the Forensic Scinece
Laboratory, and non-strict proof, by the prosecution, that the same was
not tampered with, till it was deposited in that Laboratory, must prove
fatal to the case of the prosecution, as the possibility of tampering with
the same, could not be ruled out. The submission of the Counsel for the
appellant, in this regard, being correct, is accepted.
13. Even the sample impression of the seals, was not sent to the
office of the Forensic Science Laboratory, and, as such, the said
Laboratory, was deprived of comparing the seals, on the sample parcel,
with the seals, which were affixed, at the time of alleged recovery.
Ex.PX, is the affidavit of Atma Ram, Constable, who allegedly took the
sample parcel, to the office of the Forensic Science Laboratory. In Para
No.3 of his affidavit, it was stated by him, that on 22.2.1994, the MHC,
entrusted to him, one sample parcel, sealed with the seals, bearing
impressions ‘HR’ and ‘OP’, for deposit in the office of the Forensic
Science Laboratory. He did not state that he was also handed over the
sample impression of the seals, prepared. He also did not state that he
deposited the sample impression of the seals, in the Laboratory. Thus, it
becomes clear that sample impression of the seals, was never deposited in
the Laboratory. It is not known, as to how in Ex.PY, the report of the
Forensic Science Laboratory, it was recorded that the seals tallied with
Crl. Appeal No.847-SB of 1997 10
the specimen seals. In State of Rajasthan Vs. Gurmail Singh 2005(2)
RCR (Criminal) 58, (Supreme Court), the sample seal was not sent to
the Laboratory, at the time of sending the sample parcel. The Apex
Court, held that the case of the prosecution was doubtful, on account of
this reason. In this view of the matter, the case of the prosecution also
became doubtful. The trial Court, did not take into consideration, this
aspect of the matter,as a result whereof, miscarriage of justice
occasioned.
14. The statement of Om Parkash, Inspector (PW-3), before whom
the case property, and the sample parcel, were allegedly produced, was
not recorded by the Investigating Officer. This fact was admitted by Om
Parkash, Inspector (PW-3), during the course of his cross-examination.
Under these circumstances, it could not be said, as to whether, the case
property, and the sample parcel, were produced before him, or not. In
Padam Singh Vs. State of Haryana 1997 (4) RCR (Criminal) 172
(Division Bench) (P&H), the statement of the DSP, who allegedly
reached the spot, at the time of search and seizure, under Section 161
Cr.P.C, was not recorded. The Division Bench, in the aforesaid
authority, under these circumstances, held that non-recording of the
statement of such an important witness, was a serious irregularity, which
considerably prejudiced the accused and may make his testimony tainted.
Ultimately, on this ground, and, on other grounds, the conviction was set
aside. The principle of law, laid down, in the aforesaid authority, is
applicable to the facts of the present case. Non-recording of the
statement of Om Parkash, Inspector, by the Investigating Officer, clearly
proved that the case property had not been produced before the SHO.
Crl. Appeal No.847-SB of 1997 11
The case of the prosecution, therefore, became highly doubtful, on
account of this reason.
15. No other point was urged, by the Counsel for the parties.
16. In view of the above discussion, it is held that the judgment of
conviction and the order of sentence, rendered by the Court below, are
not based on the correct appreciation of evidence, and law, on the point.
Had the trial Court, taken into consideration, the aforesaid infirmities and
lacunae, it would not have reached the conclusion, that the accused
committed the offence, punishable under Section 15 of the Act. The
judgment of conviction, and the order of sentence are, thus, liable to be
set aside.
17. For the reasons recorded, hereinbefore, the appeal is accepted.
The judgment of conviction dated 9.10.1997, and the order of sentence
dated 10.10.1997, are set aside. The appellant shall stand acquitted of the
charge, framed against him. If, he is on bail, he shall stand discharged of
his bail bonds. If, he is in custody, he shall be set at liberty, at once, if
not required in any other case. The Chief Judicial Magistrate, Karnal,
shall comply with the judgment, in accordance with the provisions of law,
and send compliance report, within 2 months, from the date of receipt of
certified copy of the judgment.
October 20, 2008 (SHAM SUNDER) Vimal JUDGE